THE LATE ELECTION QUESTION.

New Zealander, Volume 13, Issue 1133, 25 February 1857, Page 3

THE LATE ELECTION QUESTION.

To the Fditor of the N'kw-Zuai.anoki!. Sin. — The letter signed “ Finis,” being too File to permit revision before publication, and the note eulluig attention to clause 45 being also too late lor insertion, I now forward you my considerations thereon; and, as 1 think, finally conclusive on the whole question. However desirable it may he touhlaina legal opinion front (ireat Britain, we know that we possess within our own Province judicial knowledge and talent sufiicient to afford us a perfect Judgment on all points of the ease. But if it he prudent to avoid obtaining a final decision hv such means only, 1 think it. would be beneficial to the Province to throw such light as we can by discussion first, for the purpose of bringing obstructive members to a better sense' ot their duty to the Province; and secondly, that the constituency may, as far as postible, know the duties of members of Council, and the : <nr of the Constitution under which their representatives are elected. I desire, therefore, to furnish von with my further comments suggested by the examination thereof.

Clause 45, Constitution Act, page '" ; . says,—" The said House of Representatives shall, until provision be made otherwise in that behalf by law, be J 'udijes without appeal of the validity of the election of each member."

Clause 51. - "When and so often as a vacancy -hall occur as aforesaid in any seal in the said House of Represcutatives, it -hall lee lawful lor such House to address the Governor, stilting the existence of such vacancy, and the cause thereof; and the (iovernor, upon receiving such address, shall cause <i writ 10 be issued for supplying such vacancy." No [lower is hereby lefi to the Governor to decide 0:1 the merit- of the ease—clause 45 showing that the verdict of the sworn members of the House ; < final ami binding on him to issue a writ.

No such [lower is given to the I'rovincial Councils. As a substitute we have for I'rovincial Council's,* llausc 11. page 10. -" Any question which shall arise respecting anv vacancy in a I'rovincial Council, on occasion oi any of the matters aforesaid [in which bribery, personation, or corruption are nol mentioned —see clause lo,] shall be heard and determined by such Councils on such question being referred to them by the Superintendents, and not otherwise." Clause 12.—"Whenever it shall be established to the satisfaction of the Superintendent thai the seat of anv member has become vacant, the Superintendent shall forthwith i-.-u, a new writ for the election of a new member." No power is here conveyed to declare the petitioning candidate the rightful sitting member, but that there shall be issued a new writ ; and the illegal acts complained of are mil provided ior in the Con-

srirurioii Act. but art- to be found in the Bribery '.'-ill where the Provincial ' ottneil are only reijitireil tit find the fiift.s and the causes, hi tin- best of their belief; ami then to report o> the Superintendent, lit no ease, either in the bribery Bill or Constitution Act, does it state the Council can or may declare the petitioning candidate to be the sitting nieinber; itnd although that petitioner might Ik; tin- next greatest on the Electoral Hull, yet In' might no; lie the candidate fairly chosen by the representatives to represent the.tn. hecattse he might be opposed to the policy preferred by the majority, a- has been before explained in the ease of " fanner v. Powditeh," in which case Farmer was the petitioning candidate, and idso the next ltiylie.it an /:,■ rirftian rrturn. Fanner was also backed by the Provincial Government interest, md which Provincial Government boasted that they had then the majority of the constituents in their favour. N'evethelcfs, thai Provincial Government was compelled by law. against their wish, I" issue a new writ, instead of giving the se.it to Fanner; and yet Fanner's political friend was again defeated by Lewis a candidate who had not before, been con turned in thai election. Daldv is said to have declared thai lie rally feared the Government party would now bring forward a more influential man whom Graham would no! be able to tie leal ; and therefore he (Daldy) being the most unscrupulous man which Carletoti's party had, was brought forward to insure a return ; Mr. Daldy declaring that he was determined to try the validity of the writ againsl the usurpation of n part of the Provincial Council ; and ibis being the object of the other candidate, .'/<• resigned the contest in Daldv's favour; the petitioning candidate, Graham, also declining the contest, preferring to resl on tin- usurped power of the minority of ihe t 'ouncil to

taining his seat by a lawful election. \'or can Daldy, now elected, resign in favour of any •tie, whether petitioning candidate or not,bill in every •iise it new writ must be issued.

Now for the appeal. Clause 5, page s : "It shall be lawful for the (iovernor" (among other powers),line 7, "to make, provision for" (sec line la.-t but one)"determining the validity of all disputed returns, and for otherwise insuring the orderly, effective, and impartial conduct of such elections."

Here, then, we have the power vested in the Governor to make provision ; and by consequence, besides the House of Representatives, who are a court of appeal in all cases for redress, the powers ol appeal, revision, or final decision, are vested in the Governor for the I'rovincial < !ouncil. The Governor's Proclamation then goes on to state. clause 55, page I !.". -" All complaint.- of undue return shall be addressed to the Superintendent, and be by him referred to the I'rovincial Council within 10 days; and the validity of the relnrn\ not which candidate.shall take a scat] shall be decided by such Council. ' Hut though in disputed elections the final power is in the Governor to determine the validity of the return, he cannot set aside tin duty and the power of the Superintendent, given him by the Constitution Ael (clause 9, page Id), to issue a new writ on receiving a resignation in writing the lawful abnegation of the ollicial return made by writ. And neither bj resignation, nor in anv oilier way, could either Siiperintendenl or Governor declare the petitioning candidate the sitting member; but lli«* votes of the people only, and by appeal, in case another influential member should be elected who represented the policy of the majority, as in the case of Lewis or Daldy. had there been any opposing candidate to cojne forward ; or had they e./iue forward before, the constituents niigiil have preferred one of them to the petitioning candidates, Farmer and. < iraham. Rut, furthermore, the petitioner made his appeal to the Siiperintendenl under the Bribery and Treating Act, and the case was in course of hearing on bribery and permutation, which Acl doc not give any power cither to the Council or the Siiperintendenl to declare which member shall take the seal ; but lhal if the member be guilty, "thai it i- nol fitting." or thai he oughi nol to continue to hold his seal (clause 8) ; and enforces penalties lo be recovered m a court ol law, on llif grounds of iheii belief being therein proven ; and dins, by inference, if the member himself be implicated it virtually declares thai it ii is nol fitting he should, hold his seal or thus, b\ consequence, thai the return of the writ is invalid, and a new seeetion must follow. Fix is.